Under the Washington Law Against Discrimination (WLAD), RCW 49.60, how does an employee establish a claim of sexual harassment in the workplace? Here’s my point of view.
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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): SEXUAL HARASSMENT IN THE WORKPLACE
“To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[ ][:]”
(1) the harassment was unwelcome;
(2) the harassment was because of sex;
(3) the harassment affected the terms or conditions of employment; and
(4) the harassment is imputed to the employer.
Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406-07 (Wash. 1985) (footnote omitted) (hyperlinks and paragraph formatting added). I will discuss each element in turn.
ELEMENT #1 — THE HARASSMENT WAS UNWELCOME
Under the first element, the employee must prove that the harassment was unwelcome. Thus, “[i]n order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive.” Id. at 406.
ELEMENT #2 — THE HARASSMENT WAS BECAUSE OF SEX
The second element of a claim of sexual harassment in the workplace requires the employee show that the harassment was because of sex/gender. “The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.
ELEMENT #3 — THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT
Pursuant to the third element, the employee must prove that the sexual harassment affected the terms or conditions of employment. “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.
TOTALITY OF THE CIRCUMSTANCES TEST: Washington State courts typically look at the totality of the circumstances to evaluate this element. “Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstances.” Id. at 406-07.
ELEMENT #4 — THE HARASSMENT IS IMPUTED TO THE EMPLOYER
The final element requires the employee to show the harassment is imputable to the employer; this will depend on the classification of the harassing individual.
(a) Where Owner, Manager, Partner, or Corporate Officer Harasses
“Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.
(b) Where Supervisors or Co-Workers Harass
“To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer[:]
(a) authorized, knew, or should have known of the harassment and
(b) failed to take reasonably prompt and adequate corrective action.
Id. (emphasis and paragraph formatting added). “This may be shown by proving[:]
(a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and
(b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment.
Id. (paragraph formatting and emphasis added).
HOW THE EMPLOYER MAY AVOID LIABILITY
Under WLAD, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).
WLAD REMEDIES
Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).
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